Those who have been following the ups-and-downs in Nitke v. Gonzales will be surprised to hear that the plaintiffs are appealing directly to the U.S. Supreme Court, and not, as I was quoted, to the Second Circuit Court of Appeals.  (Good thing I said "probably" to that Court, hmm?)

Here's what happened: The CDA, the statute under which we filed suit, allows for an appeal as of right to the Supreme Court when the statute has been declared unconstitutional. The appeal is then fast-tracked--notice must be filed within 20 days, one-third the time usually allowed for an appeal when one of the parties is the federal government. Because the three-judge District Court that heard our case found that we had not carried our burden of proof, this provision was not applicable.

My first reaction to the decision included the recognition that appeal to the Second Circuit was our most likely result--and yet having a three judge panel decision reviewed by a second three judge panel seemed futile.  Further research (and a tip from a respected colleague) drew me to another section of the federal code relating to the judiciary, 28 U.S.C. section 1253.  That section allows for direct appeal of a decision rendered by a three-judge district court in which an injunction is sought.  We had asked for an injunction ordering the Government to not bring actions under the CDA. Thus, although we do not have the advantage of the speedy review provision, we appear to fall into the mandatory jurisdiction of the Supreme Court.  

Round Two has begun.